WHITE PAPER THE PURSUIT OF FOOD AUTHENTICITY: RECOMMENDED LEGAL & POLICY STRATEGIES TO ERADICATE ECONOMICALLY MOTIVATED ADULTERATION (FOOD FRAUD) Michael T. Roberts Whitney Turk ACKNOWLEDGEMENTS This White Paper was researched and written by Michael T. Roberts and Whitney Turk and produced by the Resnick Program for Food Law and Policy at the University of California, Los Angeles School of Law. Tiana Carriedo assisted with cite-checking sources, Emilie Aguirre provided editing suggestions, and Rudi Vanzin provided editing, design, and formatting assistance. Additionally, the following scientists, consumer advocates, food industry leaders, and legal practitioners experienced on issues related to economically motivated adulteration, reviewed and advised on portions of the contents of this white paper: Jeffrey Moore, United States Pharmacopeia Karen D. Everstine, United States Pharmacopeia Paul Miller, Australian Olive Oil Association, Ltd Michael R. Reese, Reese LLP Adam Gutride, Gutride Safier LLP This White Paper was made possible due to a generous gift by the Cortopassi Family Foundation. The recommendations in this White Paper do not necessarily represent the views of these the reviewers, the contributors, or the University of California, Los Angeles School of Law. ABOUT THE RESNICK PROGRAM FOR FOOD LAW & POLICY The Resnick Program for Food Law and Policy studies and advances solutions for improving the modern food system. Based at UCLA School of Law, the Resnick Progrm is a national think tank focused on developing key legal and policy strategies, timely research, and practical tools to foster a food system that benefits consumers. Statement of Independence and Objectivity: The Resnick Program for Food Law and Policy is committed to the highest standards of independent inquiry, academic excellence and rigor. Research findings and conclusions are never altered to accommodate other interests, including those of funders, other organizations, or government bodies and officials. The Resnick Program for Food Law and Policy [email protected] UCLA School of Law www.law.ucla.edu/resnick 385 Charles E Young Dr. E Join our mailing list! Los Angeles, CA 90095 Follow us on Twitter CONTENTS I. Introduction 4 2. The Modern Problem of EMA 6 Defining Economically Motivated Adulteration (EMA) 6 Foods Most Commonly Subject to EMA 11 Challenges in Detection and Testing 12 Harms Caused by EMA 15 3. Government Enforcement Against EMA 17 Early Regulation 17 FDCA Section 401: The Rise and Fall of Standards of Identity 18 Additional Enforcement Tools 20 FSMA: Focus on Safety not EMA 20 EU Criminal Enforcement: Harbinger for the US? 21 Status Quo: Minimal Enforcement Activity 22 4. Legal and Policy Strategies 22 Enforce Against EMA as Fraud: Putting Consumers First 22 Define EMA More Completely 24 Develop High Priority List for Standards Making and Testing Strategy 24 Promote Authenticity as a Public Value 25 Improve Effective Use of Class-Action Litigation 27 5. Conclusion 29 PREFACE This White Paper recognizes that the current political reality likely translates into less, not more federal government regulation of food. Hence, it should be noted that this paper does not advocate new administrative regulations or rules. This paper simply recommends that the FDA enforce the existing statutory mandate against food fraud for the benefit of American consumers in a smart, efficient manner by setting enforcement priorities and by collaborating with science experts and the food industry. This paper further recommends that the food industry eradicate food fraud by embracing the norm of authenticity and establishing self-governance rules as it has done so with sustainability. Last, this White Paper proposes specific rules changes in litigation against food fraud that courts could take to enhance the use of the tool of litigation in combating food fraud. LIST OF ABBREVIATIONS CSR Corporate Social Responsibility EMA Economically Motivated Adulteration FDA Food and Drug Administration FDCA Food, Drug, and Cosmetic Act FMIA Federal Meat Inspection Act FSMA Food Safety Modernization Act GMA Grocers Manufacturing Association International Multidimensional IMAS Authenticity Specification National Advertising Division of the NAD Council of Better Business Bureau PPIA Poultry Products Inspection Act PFDA Pure Food and Drug Act United States Department of USDA Agriculture USP US Phamacopeial Convention to EMA, examining the challenges of detecting EMA, 1. INTRODUCTION and accounting for the harms of EMA. Part II surveys the legal tools currently used by the government to combat EMA, commenting on their strengths and weaknesses. Food fraud is both an old and modern problem. A major Part III sets forth five specific legal and policy strategies to form of food fraud—referred to in modern terminology combat EMA. The first strategy is to put consumers first as Economically Motivated Adulteration (EMA)—includes and to adhere to the statutory mandate to enforce against the padding, diluting, and substituting of food product for EMA as fraud, rather than a lower tier of adulteration the purpose of economic gain that may or may not affect that is only of interest to government agencies if there the safety of the product. EMA harms consumers, honest is a food safety crisis. The second strategy is to define merchants, and undermines the credibility of regulatory EMA more completely in order to guide the government agencies that have jurisdiction over the quality and safety agencies and the food industry and to frame expectations of food. for compliance. The third strategy is to create a high priority category for the most problematic EMA foods This form of cheating targeted wines, spices, meat, and that would subject these foods to standards making and bread, as early as in the Roman Empire. Legal responses testing without overburdening government capacity. The to EMA-type fraud have historically been suited to the fourth strategy is for the food industry to self-regulate sensibilities for the time. During the reign of Edward the food authenticity through corporate social responsibility Confessor in the eleventh century, for example, brewers of poor quality beer in the city of Chester were condemned to stand in the tumbril or dung-cart.1 In early fourteenth- century London, the baker who sold underweight bread Although the definition of would have the offending loaf slung around his neck and be drawn through the dirtiest streets in town on a mobile “authenticity” is multifaceted, pillory to be jeered at and targeted by flying debris hurled especially as applied to food, this paper from fellow citizens.2 takes a practical approach and regards In the modern food system, trade flows of varieties of food “authentic food” as food that is what it products and ingredients from multiple locations around purports to be, and as food that is not the world increase the level of EMA. This dynamic poses unique challenges to good governance. Enforcement subject to fraud, including economically against modern EMA calls for legal solutions beyond motivated adulturation. the dung-cart or mobile pillory, practical solutions that recognize the sophistication and systemic nature of the cheating and protect consumers. These practical solutions should include effective legal and policy tools and inspire new ways of thinking about food fraud. To this end, this White Paper in four parts documents the modern problem of EMA and proposes legal and policy strategies in dealing with EMA. Part I addresses the modern problem of EMA in the United States by defining EMA, documenting the foods commonly subject Source: Public Domain. http://bit.ly/2my4O07 5 The Pursuit of Food Authenticity “By now we know that not every food is what it seems. But if you really want to get paranoid, peek into the USP Food Fraud Database. It’s a searchable trove of humankind’s ceaseless efforts to swindle, hoodwink and defraud with food, worldwide. Source: http://www.npr.org/sections/the- salt/2013/03/26/175377244/food-fraud-database-lets-us-all-play- That’s where I learned that hucksters sometimes detective use Sudan red dye to amp up paprika, which in its natural state is often a demure reddish brown. Sudan red is a potent carcinogen, banned for use commitments and voluntary standards, thereby delivery in food worldwide. Eek!” to consumers food that is EMA-free. The fifth and last strategy recommends specific changes to class action litigation rules that would enhance the effectiveness of this tool in combatting EMA. 2) a 2013 report issued by the United Kingdom’s (UK) Department of Environment, Food This White Paper acknowledges the important work being and Rural Affairs, titled Elliott Review into done by others in combatting EMA. US Pharmacopeial the Integrity and Assurance of Food Supply Convention (USP) in recent years has produced a guidance Networks; document on Food Fraud Mitigation, convened food fraud workshops, and created a Food Fraud Database. Michigan 3) a 2014 Congressional Research Service (CRS) State University’s Food Fraud Initiative includes a food fraud report, titled, Food Fraud and “Economically blog, an online course, and workshops. The newly formed Motivated Adulteration” of Food and Food International Food Authenticity Assurance Organization Ingredients. is creating molecular profiles for food ingredients and methodologies to determine whether food ingredients Articles and books in popular press have also in recent are authentic or not. years called attention to fake food or food fraud. Examples of books include: Bee Wilson, Swindled: The Dark History Three notable government reports that address EMA of Food Fraud, From Poisoned Candy to Counterfeit Coffee include: (2008); Tom Mueller, Extra Virginity: The Sublime and Scandalous World of Olive Oil (2012); and Larry Olmstead, 1) a 2011 US Government Accountability Office Real Food Fake Food: Why You Don’t Know What You’re (GAO) report, titled, Better Coordination Eating And What You Can Do About It (2016). Could Enhance Efforts to Address Economic Adulteration and Protect the Public Health; This White Paper adds to all of these efforts by addressing legal and policy strategies for the US to combat EMA.